Walterine Hayes v. Andrew P. Hayes
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CA-01806-COA
WALTERINE HAYES
APPELLANT
v.
ANDREW P. HAYES
APPELLEE
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
9/7/2007
HON. H. DAVID CLARK II
NEWTON COUNTY CHANCERY COURT
ROBERT M. LOGAN
TANYA L. PHILLIPS
ANDREW P. HAYES (PRO SE)
CIVIL - DOMESTIC RELATIONS
CHANCELLOR FOUND NO AMBIGUITY
IN THE PROPERTY SETTLEMENT
AGREEMENT AND ORDERED FORMER
WIFE TO RELEASE ANY INTEREST IN
FORMER HUSBAND’S PENSION
ACCOUNT
REVERSED AND REMANDED - 11/4/2008
BEFORE LEE, P.J., ROBERTS AND CARLTON, JJ.
LEE, P.J., FOR THE COURT:
FACTS AND PROCEDURAL HISTORY
¶1.
Walterine and Andrew P. Hayes were married to each other for the second time in
February 1991. Walterine and Andrew separated in March 2004. Walterine and Andrew
were granted an irreconcilable differences divorce on August 2, 2005, in the Newton County
Chancery Court. The parties entered into a property settlement agreement that was
incorporated into the judgment of divorce. Part of this agreement included a section where
the parties agreed to “receive use, possession and ownership of all other items of personal
property currently in their possession, including . . . retirement accounts, pension accounts
. . . .”
¶2.
In June 1996, while the parties were married, Andrew executed a Joint and 50%
Surviving Spouse Option for Walterine, which was provided through his employer’s pension
plan. Sometime prior to the divorce, Andrew retired and began drawing a monthly pension
payment of $1,275. Because Andrew elected to provide Walterine this benefit, his pension
was paid to him at a reduced rate.
¶3.
Subsequent to the divorce, Walterine refused to execute a waiver releasing any
interest she had in the pension account. Walterine claimed that the option was vested in her
prior to the divorce and that she retained an ownership in this interest as her separate
property. Andrew then filed a contempt action. After a hearing on the matter, the chancellor
ruled in favor of Andrew, finding that pursuant to the property settlement agreement,
Walterine had waived any claim to Andrew’s pension. Walterine now appeals asserting that
her interest in the pension plan was vested during the parties’ marriage and that the
chancellor erred in ordering her to waive her interest in the surviving spouse option.
STANDARD OF REVIEW
¶4.
Our standard of review in chancery matters is well settled: This Court will not reverse
a decision of a chancellor unless the chancellor’s findings were clearly erroneous, manifestly
wrong, or based upon an erroneous legal standard. Pearson v. Pearson, 761 So. 2d 157, 162
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(¶14) (Miss. 2000).
DISCUSSION
¶5.
As Andrew did not file a brief in this matter, we have two options before us. The first
is to take Andrew’s failure to file a brief as a confession of error and reverse, which should
be done when the record is complicated or of large volume and “the case has been
thoroughly briefed by appellant with a clear statement of the facts, and with apt and
applicable citation of authorities, so that the brief makes out an apparent case of error.” May
v. May, 297 So. 2d 912, 913 (Miss. 1974). The second is to disregard Andrew’s error and
affirm, which should be used when the record can be conveniently examined and such
examination reveals a “sound and unmistakable basis or ground upon which the judgment
may be safely affirmed.” Id. Because Walterine has made out an apparent case of error, and
the basis for the chancellor’s decision is erroneous, we discuss the merits below.
¶6.
We must determine whether Walterine had an interest in Andrew’s pension plan
through the surviving spouse option at the time the parties entered into the property
settlement agreement and whether Walterine effectively relinquished her interest in the
pension plan. Andrew’s pension plan is governed by the Employee Retirement Income
Security Act (ERISA). See 29 U.S.C. § 1001 et seq. The Retirement Equity Act (REA) of
1984 amended ERISA and enhanced ERISA’s protection to spouses and dependent children.
Rivers v. Cent. and S. W. Corp., 186 F.3d 681, 683 (5th Cir. 1999). The REA created the
Qualified Domestic Relations Order (QDRO), which recognizes an alternate payee’s rights
to a portion of the benefits payable with respect to a participant under a pension plan. Id.
In the absence of a QDRO, benefits provided through a pension plan “may not be assigned
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or alienated.” 29 U.S.C. § 1056(d)(1).
¶7.
Neither this Court nor the supreme court has addressed this issue. However, there is
ample guidance from federal case law. In Hopkins v. AT&T Global Information Solutions
Co., 105 F.3d 153, 155-56 (4th Cir. 1997), the Fourth Circuit determined that surviving
spouse benefits vested in the plan participant’s current spouse on the date the participant
retires. In Rivers, the Fifth Circuit found that the husband’s pension benefits “irrevocably
vested in [his current spouse] on the date of his retirement and [the first wife] [was] forever
barred from acquiring an interest in [husband’s] pension plan.” Rivers, 186 F.3d at 683-84.
The Rivers court noted that the first wife could have protected her rights by obtaining a
QDRO prior to her ex-husband’s date of retirement or, stated differently, prior to the second
wife’s vesting of her husband’s pension benefits. Id; see also 29 U.S.C. § 1056(d)(3)(A).
Clearly, Walterine had a vested interest in Andrew’s pension benefits at the time of his
retirement, which was prior to the parties’ separation and divorce. Thus, at the time the
property settlement agreement was entered into, Walterine was entitled to retain her
surviving spouse benefits because they were personal property in her possession at the time
of the execution of the agreement.
¶8.
We now determine whether Walterine relinquished her interest in the surviving
spouse benefits. The Fifth Circuit has stated that to qualify as a QDRO a divorce decree
must “‘clearly specif[y]’ the identity of any beneficiary, the particular plans affected, and the
exact manner of calculating benefits.” Kennedy v. Plan Adm’r for DuPont Sav. & Inv. Plan,
497 F.3d 426, 431 (5th Cir. 2007) (citing 29 U.S.C. § 1056(d)(3)(C)). The property
settlement agreement fails to meet these specifications. Thus, Walterine never waived her
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interest in the surviving spouse benefits, and the chancellor erred in finding so. We reverse
and remand for further proceedings consistent with this opinion.
¶9.
We note that Walterine requested attorney’s fees. Upon remand, the chancellor
should determine whether to award Walterine reasonable attorney’s fees.
¶10. THE JUDGMENT OF THE NEWTON COUNTY CHANCERY COURT IS
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLEE.
KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
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